making local government more ethical

The Office of Congressional Ethics Leaves Its Barn and the Congressional Black Caucus Tries to Rein It In

While I was away on vacation, the new, quasi-independent Office of Congressional Ethics (OCE) was in the news a lot.

Going Outside of Congress
First, it did something that made it appear more than the paper tiger I called it a year ago. According to a New York Times editorial last week, when the OCE's investigation of contributions to House Appropriations Committee members (especially from those associated with PMA) and their effect on defense contracts was dismissed by the House Committee on Standards of Official Conduct, the OCE sent its report to the Justice Department.

Since the OCE was given no subpoena power, it was not even able to interview many congressional representatives or their staff. Nor can the OCE take any action against congressional representatives, no matter how much information it does uncover. Sending its report to an entity other than the House Ethics Committee is the only way it can do anything but acquiesce in the serious limitations that accompany the House's self-regulation of its members' conduct. This was a bold, unexpected move.

Confidentiality and Revenge
But for every bold move by an ethics commission, there is sure to be a self-defensive move against it. The self-defensive move came one day after the OCE's announcement that it would be sending its report to the Justice Department.

The form of the response was a resolution (H. Res. 1416) introduced by Rep. Marcia Fudge (D-OH) and co-sponsored by nineteen other members of the Congressional Black Caucus. This vengeful resolution marks a low point for the Black Caucus.

According to Rep. Fudge's press release, the resolution does the following (the language in brackets is mine):

•    Prohibits unwarranted and premature publication of OCE's reports and findings that detail alleged allegations associated with violations;
•    Directs the OCE to amend its rules to clearly define the standard of proof required to (1) undertake a preliminary review; (2) commence a second-phase review of any matter; and (3) refer any matter to the Committee on Standards of Official Conduct (the Committee);
•    Permits OCE's jurisdiction to be invoked only by a sworn complaint from a citizen asserting personal knowledge of an alleged violation [an unprecedented limitation on jurisdiction]; and
•    Authorizes the Committee to dismiss a matter referred by the OCE as frivolous or unfounded [note that the Black Caucus does not define "unfounded" even though it wants the standard of proof defined] and require the OCE to seal records associated with cases that are dismissed by the Committee as frivolous or unfounded.  [this puts the congressional committee in the driver's seat]

This description hardly does justice to a resolution that does all it can to make the congressional ethics process top secret, and to prevent investigations from taking place. It's worth noting that these representatives appear to prefer partisan attacks, leaks, rumors, and innuendo to reports based on professional investigations by a bipartisan panel consisting primarily of former representatives. No one truly innocent would prefer to be investigated by blogs rather than by a bipartisan panel.

Because this is not about, as the Fudge press release says, perfecting the process, making it free of politics, and "avoiding trials in the court of public opinion." This is about preventing the bad publicity that accompanies investigations like those of eight members of the Black Caucus, including five who had accepted private funding for a trip to St. Maarten in 2008, according to a recent New York Times article.

Even if it were desirable, however, you can't keep conduct like the St. Maarten trip secret, especially now. If you make it hard for such conduct to be investigated, and if you make it hard for such investigations to be made public, then the news media, including blogs, will investigate and try elected officials.

See an earlier blog post on ethics proceeding confidentiality.

Robert Wechsler
Director of Research, City Ethics